By Linda Jean Carpenter, PhD, JD, and R. Vivian Acosta, PhD

A little used, but highly divisive and very controversial, method of demonstrating compliance with Title IX’s requirement to provide equal access to participation opportunities for females and males was removed from the field yesterday.

Three methods for showing participation compliance have existed for decades. A school needs to satisfy only one of the three methods in order to demonstrate that it is providing equal access to participation opportunities. A school could elect to show that

the ratio of males/females in its athletics program reflects the male/female ratio of its student body, or

the school has a continuing history of upgrading its women’s program, or

the school has met the interests and abilities of the females students.

A 2005 ‘Additional Clarification’ from the Department of Education/Office for Civil Rights (OCR) offered what many perceived as a a ‘get-out-of-jail-free’ card to any school that wanted to show Title IX participation compliance by using the ‘interests and abilities’ option. The 2005 Clarification offered an OCR constructed survey that many thought had fatal flaws. OCR seemed to be saying that the way to compliance through the interests and abilities option was simple. The school conducted the OCR email survey. A presumption of compliance was granted once the survey was conducted. What could be simpler? Results of the survey had no impact on the free gift of the presumption of compliance. All that was needed was to conduct the survey; the results were of no consequence to the presumption of compliance.

Fortunately, few schools used the 2005 OCR survey method. However, the issuance of OCR’s April 20, 2010 ‘Dear Colleague’ letter totally removes the flawed survey and its ‘get-out-of-jail-free’ card from OCR’s lexicon. The April 20, 2010 ‘Dear Colleague’ letter also provides two other very valuable items. In black and white, the letter provides a full and difficult-to-misconstrue discussion of how to meet the interest and abilities option. Between the lines, its issuance also indicates that now, in Title IX’s 38th year, OCR believes it is time to replace obfuscation and political posturing with the simple expectation that adults of goodwill will do what is right and when they don’t, OCR will exercise its enforcement power to insist that they do better.

This is a statement written by Linda Jean Carpenter, PhD, JD, and R. Vivian Acosta, PhD, authors of Title IX. They recently released a 33-year update of their national, longitudinal study on the status of women in intercollegiate athletics. Both an executive summary and a 40+ page report may be found at www.acostacarpenter.org.

Articles and Links

Several HK authors were recently involved in the creation of a new Title IX DVD set, created through a partnership between WBGU-PBS, Bowling Green State University, and the National Association for Girls and Women in Sport (NAGWS).